Who hasn’t lied to get someone into bed?

Undercover policemen sleeping with their targets should not be prosecuted as rape.

L

1 September 2014

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Last week, the Crown Prosecution Service (CPS), which undertakes all prosecutions for criminal offences in England and Wales, announced it would not be prosecuting four undercover police officers for forming sexual relationships in the course of their investigations. The CPS found that there was insufficient evidence to prosecute the men for any sexual misconduct offences or for misconduct in a public office. The officers were part of Scotland Yard’s Special Demonstrations Squad, which infiltrated political groups between 1968 and 2008. They had formed sexual relationships lasting between six months and nine years with the women they were investigating. Some had even fathered children.

This is not the first time the shady Special Demonstrations Squad has come under public scrutiny. Earlier this year, home secretary Theresa May announced a public inquiry into undercover policing following revelations regarding the unit’s alleged infiltration of the family of murdered teenager Stephen Lawrence. The Court of Appeal quashed convictions arising from the investigations of one of the unit’s officers, Mark Kennedy, after extensive misconduct was exposed.

I don’t hold a candle for these officers. To father a child with your surveillance target is utterly unconscionable. Misleading these women, convincing them they were falling in love with them, clearly marks these undercover officers out as nasty pieces of work. The complainants in these cases have accordingly vented their understandable outrage at the decision not to prosecute. Some have described feeling as though they have been ‘raped by the state’. Another called the relationship she formed with an officer a form of ‘body hacking’. Some commentators have taken the case as an example of the ‘state looking after its own’. Vera Baird, the former solicitor general, argued that the ‘sexual behaviour of undercover police fits the definition of rape’ and that they should have been prosecuted accordingly.

But it is important not to let the fact that these officers behaved terribly cloud our judgement as to what should constitute a criminal act of rape or sexual assault. Arguably, Baird is wrong to say that the actions of these officers currently ‘fits the definition of rape’. She is right to say that there has, for a long time, been a precedent in UK law for prosecuting rape where consent has been obtained as a result of a deception, either in relation to the nature of the act or in relation to the identity of the individual involved. But what ‘deceptions’ could lead to rape is not simply a matter of referring to a statutory ‘definition’. The most bizarre aspect of this area of law is that it falls to the upper judiciary to decide on which ‘deceptions’ might ‘vitiate’ (their words) the consent of a complaint and lead to a rape. Lies about your job, or how much money you have, do not currently fall within the remit of this doctrine and there is good reason to celebrate the fact that they don’t. If we look at recent case law it is obvious that the doctrine of ‘rape by deception’ has routinely been used to criminalise the most intimate aspects of sexual relationships.

In 2012, a young transgendered man was jailed for two years after he was sexually intimate with a young girl before proceeding to disclose the fact that he had once been a woman. The complainant told the police that she never would have consented had she known that the person she was sleeping with was transgendered. The Court of Appeal found that the victim in that case had been ‘denied the right to choose’ whether to have sexual contact with someone who remained biologically female and upheld the conviction. In a 2013 case, a man was prosecuted when – following entirely consensual sexual intercourse – he ejaculated inside of his wife without pulling out. The court found that the consent he had obtained was based on a deception, because he had said beforehand that he would pull out to avoid the danger of pregnancy, and so ‘vitiated’ the consent of his wife when he failed to do so. They upheld his conviction, too. Both of these deceptions were held to have ‘vitiated’ the consent of the accused, thereby making the sex non-consensual.

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But the Court of Appeal has said that other ‘deceptions’, such as those pertaining to ‘wealth’, would not be sufficient to make the sex that took place afterwards non-consensual. Accordingly, it is very unlikely that the actions of these police officers, in lying merely about their profession, straightforwardly ‘fit the definition of rape’. Arguably, as the cases above show, when judges are given this level of control over our sex lives they come up with some significantly counterintuitive results.

We should be glad that these men are not being prosecuted. To say that these men were guilty of rape, or any other sexual crime, would effectively mean that any sex which was preceded by a lie could be considered rape. After all, if lying about your job can ‘vitiate’ consent in the eyes of the law, what about lying about your income? What if an estate agent lies about his job in order to impress someone? Would we say that a complainant in this case had been ‘denied the right to choose’ whether to sleep with estate agents?

The reality is that attracting other people often involves a little bullshitting. Getting them to sleep with you might involve even more bullshitting. Anyone who has spent any time ‘in the courting process’ (or on the pull) will know that lying and deception is often part and parcel of the complex process of developing intimacy. To invite the law to regulate this area more than it already does would represent an extremely dangerous expansion of rape law into an area which is best governed by the mechanisms of human judgement and experience.

We should stand up for the rights of single guys and girls to lie to one another in pursuit of sex, as a natural and often completely necessary part of human interaction. In this case, this means we should not support the prosecution of these nonetheless reprehensible undercover coppers.

Luke Gittos is law editor at spiked, a solicitor practicing criminal law and convenor of the London Legal Salon.